Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Greenup County Sheriff's Office violated the Kentucky Open Records Act in the disposition of James Sparks' July 19, 2011, written request "to view any and all 'witness statements' pertaining to any person(s) that were interviewed or questioned concerning the investigation of [Case No. 08-09-12]." (Original emphasis.) Having received no written response, Mr. Sparks initiated this appeal by letter dated August 1, 2011. Neither the Greenup County Sheriff nor the Greenup County Attorney responded to Mr. Sparks' appeal initially; however, when this office inquired as to whether the agency received the Notification of his appeal and wished to respond, Greenup County Attorney Michael Wilson ultimately advised that "the Greenup County Sheriff's Office is in possession of none of the records sought by Mr. Sparks." He forwarded a copy of the Sheriff's response to Log No. 201100292 (prompted by the apparent failure of the Sheriff's Office to respond upon receipt of Mr. Sparks' request for a related surveillance video), a separate but related appeal, in which Sheriff Keith Cooper explained that "Mr. Sparks was advised that all of the materials he requested have been made available to his trial attorney and have been since his trial. It is all contained in the case file with the Circuit Clerk, Allen Reed as well as the file with the Commonwealth['s] Attorney." 1 Although the Sheriff's Office cannot produce nonexistent records or those which it does not possess for inspection or copying, nor does the Sheriff's Office have to "prove a negative" in order to refute a claim that certain records exist in the possession of the agency, it would not be relieved of its duty to provide him with any responsive nonexempt records in the possession of the agency "merely because a copy of his file was provided to his defense counsel [.]" 09-ORD-199, p. 2.
As the Attorney General has consistently recognized, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. The right to inspect attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. Thus, a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively indicating that no such records exist, as the Sheriff's Office ultimately confirmed here. On many occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98; 09-ORD-029; 11-ORD-069. Under the circumstances presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, 2 the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Our decisions in open records disputes are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is open to public inspection. Simply put, Kentucky's Open Records Act applies to records that currently exist and that are in the possession or control of the public agency to which the request is directed. See 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist). When, as in this case, a public agency denies that any responsive documents exist in its possession or custody, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9.
In responding to Mr. Sparks' appeal, the Sheriff's Office affirmatively indicated that no documents matching the description provided exist. The Sheriff's Office now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Sparks' claim that such records do exist. Addressing this dilemma, in
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), the Kentucky Supreme Court observed "that before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist." 3 In a series of decisions issued since Bowling , this office has been obliged to affirm public agency denials of requests based upon the nonexistence of responsive documents in the absence of a prima facie showing that documents being sought did, in fact, exist in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 07-ORD-190; 08-ORD-189. Mr. Sparks has not attempted to make such a showing here.
The analysis contained in 07-ORD-190 is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference. Assuming the Sheriff's Office made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," it complied with the Act, regardless of whether the search yielded any results, by affirmatively indicating that no records were located. 05-ORD-109, p. 3; 01-ORD-38; OAG 91-101. Compare 11-ORD-074 (holding that "existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable" and the agency failed to rebut the presumption). To hold otherwise would result in the Sheriff's Office "essentially hav[ing] to prove a negative" to refute a claim that such records exist in the possession of the agency. 07-ORD-190, p. 7. See also 11-ORD-024. However, the analysis does not end there.
Pursuant to KRS 61.872(4), "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records ." (Emphasis added.) The Sheriff's Office ultimately confirmed that it does not possess or maintain the records being sought, and notified Mr. Sparks that any such records would be in the custody of the Circuit Court Clerk or the Commonwealth's Attorney, in substantial compliance with KRS 61.872(4); however, the agency did not provide Mr. Sparks with contact information for either agency. To this extent, the agency's response was deficient. See 09-ORD-029.
Additionally, insofar as the Sheriff's Office relied on the fact that Mr. Sparks' trial attorney was apparently provided with a copy of his file, which presumably included any existing responsive witness statements, its response was inconsistent with the Open Records Act. Neither this fact nor the fact that Mr. Sparks may be able to acquire the records from another source would relieve the Sheriff's Office of its duty to provide him with a copy of any such record(s) also in the possession of the agency if the Sheriff's Office also had the records. 00-ORD-16, p. 4; 09-ORD-199. On at least several different occasions, the Attorney General has rejected this argument, holding that "rationale does not support nondisclosure, and is not a legally recognized basis for denying an open records request." Id., citing 99-ORD-121, p. 10; 00-ORD-16; 04-ORD-059; 04-ORD-220; 06-ORD-131. It is only through full disclosure of a public agency's records that a requester can satisfy himself that the record is complete. Id. Accordingly, the Attorney General has consistently recognized that "a public agency cannot withhold public records from a requester simply because the records may be obtained from another source." 97-ORD-87, p. 4, citing OAG 90-71. Based upon the foregoing, in 09-ORD-199, for example, this office found that the Russell Police Department "violated the Act in denying [a] request partially because [the requester's] defense counsel and/or the Innocence Project had already been provided with a copy of his file." Id., p. 4. This office urges the Sheriff's Office to be mindful of this line of decisions in responding to future requests of this nature.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Distributed to:
James Sparks, # 206161Keith M. CooperMichael Wilson
Footnotes
Footnotes
1 It is unclear from the record on appeal whether the Sheriff's Office issued a timely written response advising Mr. Sparks of this fact, in accordance with KRS 61.880(1), or merely advised him verbally; however, the Sheriff's Office did not choose to directly address Mr. Sparks' allegation that his request went unanswered. Unless the Sheriff's Office issued a written response within three business days of receiving his written request, expressly notifying him that it did not possess any responsive documents, it violated the mandatory language of KRS 61.880(1). As the Attorney General has consistently recognized, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5; 09-ORD-186. Because the record is unclear on this procedural issue, and the law regarding application of KRS 61.880(1) is well-established, this office will not belabor the issue.
2 See KRS 61.8715.
3 Black's Law Dictionary, 1071 (5th ed. 1979), defines prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."